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TMI Blog2013 (12) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... eceiver and thereafter the service provider need not and will not have any relationship with the persons whom he has sent. On the other hand, in the case of MSS, the service receiver requests for a number of men or women as the case may be with requisite qualification and once they are sent, the service receiver may choose and select or may simply accept the persons sent by the service provider but the responsibility for the performance of these persons and payment of salaries to them and other obligations which are required to be met by the employer will be with the service provider only. There is no obligation to show reasons as to why the persons were sent back. Further there is no connection between the persons sent by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 78 of the Finance Act, 1994 and Rs.5000/- has also been imposed under Section 77 of the Act. 2. The learned counsel on behalf of the appellant takes us through some specimen agreements. He submits that according to the agreements, the appellant was required to nominate some candidates to customers, whose qualifications and eligibility are assessed by the customers and thereafter the acceptance is communicated to the appellant. Once acceptance is received and the remuneration also agreed mutually, the persons selected by the customers work for the organizations and the organizations i.e. receiver of the service pay up the salaries to be paid to the persons nominated by the appellant + a commission of 4% or 5% as agreed upon. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST, Guntur ([2013] 29 taxmann.com 72 (Andhra Pradesh)). As an alternative plea, he submits that the extended period could not have been invoked in this case in view of the fact that includability of reimbursable expenses for levy of service tax had been referred to Larger Bench which would show that there were contrary views on the same issue taken by different Benches of the Tribunal. Further he also submits that service tax has been simply demanded on the figures available in the balance sheet and the balance sheet figures include the provision of EPI cards by them and other incomes also and therefore on that ground also the demand is required to be quashed. Further he also submits that demand has been made without treating the amount re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... men or women as the case may be with requisite qualification and once they are sent, the service receiver may choose and select or may simply accept the persons sent by the service provider but the responsibility for the performance of these persons and payment of salaries to them and other obligations which are required to be met by the employer will be with the service provider only. We have also considered the clauses of the agreements which clearly provided that at any point of time, the persons can be told to cease the employment and go away. This shows that when the persons are not required by the service receiver and simply send them back. There is no obligation to show reasons as to why the persons were sent back. Further there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecipient has an obligation legal or contractual to pay certain amount to any third party and the said amount is paid by the service provider on behalf of the service recipient, the question of reimbursing the expenses incurred on behalf of the recipient shall arise. For example, when rent for premises is sought to be claimed as reimbursement, it has to be seen whether there is an agreement between the landlord of the premises and the service recipient and, therefore, the service recipient is under obligation for paying the rent to the landlord and that the service provider has paid the said amount on behalf of the recipient. The claim for reimbursement of salary to staff, similarly has to be considered as to whether the staff were actually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elates to the income from other activities of the appellant and the actual differential tax would come to about Rs.2.82 crores. 11. At this juncture, we also take note of the fact that the decision of the Honble High Court of Delhi in the case of Intercontinental Consultants Technocrats Pvt. Ltd. (supra) and the decision of the Larger Bench of this Tribunal were not cited before the original adjudicating authority. Further, original authority also has not taken the claim for reduction of value on account of other activities into account while confirming the demand. Further, claim of cum-tax has also not been taken note of. Therefore, the original adjudicating authority may have to consider applicability of extended period in the light ..... X X X X Extracts X X X X X X X X Extracts X X X X
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